pageok
pageok
pageok
Same-sex marriage and the election (Part 1):

On the eve of the election, anti-gay-marriage commentator Stanley Kurtz assessed the likely impact of the results on the future of same-sex marriage politics. First, he suggested, there were important immediate implications for New Jersey, where the state supreme court had just ordered the legislature to grant equal rights to gay families.

If Menendez wins by four points or more, that sends the message that New Jersey's gay marriage decision had no harmful political effect on the Democrats. And that will tend to free New Jersey state legislators to risk approving full-fledged same-sex marriage. If, on the other hand, Kean defeats Menendez, that will be read as a message from New Jersey voters rejecting the court decision. Victory for Kean would maximize the chances that New Jersey's state legislature would approve "only" civil unions. And a big Kean upset might even push Democratic legislators, fearing for their seats in 2007, to join with Republicans to approve a state constitutional amendment defining marriage as the union of a man and a woman. So a great deal hangs on the outcome of the Kean-Menendez battle.

Menendez won, 53%-45%. That's double the margin that Kurtz predicted would "free New Jersey state legislators to risk approving full-fledged same-sex marriage" when they take up the issue in the next six months.

Second, he suggested a possible national impact:

Although there are many more complicating factors at the national level, the same political calculus does apply (or will be applied) nationally, though certainly to a lesser degree. If, in the wake of the New Jersey decision, the Democrats take over both the House and the Senate, it will be said that the gay marriage issue has lost its power to motivate voters. That in turn will embolden state judges to follow New Jersey's lead, and will make a Democratic congress far less likely to pass a federal marriage amendment in the event that New Jersey or some other state provokes a crisis by legalizing gay marriage, thus becoming a national gay "Las Vegas" some time in the next two years.

If, on the other hand, the Republicans come back at this late date and narrowly retain both houses of Congress, it will be said that the New Jersey decision helped to energize the voters. That will tend to keep activist judges bottled up, and will lay the political groundwork for a federal marriage amendment, if and when gay marriage spreads to more states.

The Democrats took the House. The Senate is up for grabs, but the Democrats have a slight edge.

There were even bigger and more direct messages about the politics of gay marriage in this election. I'll have more to say about that soon.

Related Posts (on one page):

  1. Same-sex marriage and the election (Part 2):
  2. Same-sex marriage and the election (Part 1):
Jeremy T:
How can you possibly argue that a Senate victory by a Democrat in New Jersey is more probative on the gay marriage question than the fact that all anti-gay marriage initiatives but one passed resoundingly? (And the one that failed only failed because of domestic partner benefit issues, not a lack of opposition to gay marriage.)

You commit a grave logic error. You assume that because a candidate who has opinion X won handily, that the electorate must share opinion X. That is obviously fallacious, but frankly I'm not surprised to see fallacious logic coming from a gay marriage proponent.
11.8.2006 10:28am
M.E.Butler (mail):
Jeremy beat me to the computer with his comment.

It's sort of like looking at the line-up of the Soviet leaders on Lenin's Tomb at the May Day parade to guess what's going on in the Kremlin instead of listening to the tapes from the secret microphones.

Kean was defeated for a whole host of reasons--his youth and inexperience, his being a Republican in a Democrat year, his image as a lightweight trading on his father's reputation, the overwhelming majority Democrats enjoy in voter registration, etc.--and, as Jeremy says, the voters who spoke directly on the subject were clear.
11.8.2006 10:43am
Gabriel Malor (mail):
Jeremy, maybe you want to redirect your criticisms to Kurtz, rather than Carpenter. It was Kurtz who claimed, "If Menendez wins by four points or more, that sends the message that New Jersey's gay marriage decision had no harmful political effect on the Democrats."

Moreover, the results with regard to domestic partner benefits were more mixed that you allow. Virginia had a similar restriction written in their marriage initiative and it passed anyway.
11.8.2006 10:44am
Steve:
I'd expect New Jersey's legislature to take the safe route and simply reaffirm civil unions, along the lines required by the court. I don't see why, having taken an incremental approach in the first instance, the legislature would suddenly be emboldened to take the most extreme step.
11.8.2006 10:51am
Colin (mail):
How can you possibly argue that a Senate victory by a Democrat in New Jersey is more probative on the gay marriage question than the fact that all anti-gay marriage initiatives but one passed resoundingly?

He didn't.

That is obviously fallacious, but frankly I'm not surprised to see fallacious logic coming from a gay marriage proponent.

Classy.
11.8.2006 11:04am
SP:
I'm not sure what Kurtz's opinion has to really do with anything here. In Virginia, Allen has apparently lost, despite the fact that this supposedly purple state voted overwhelmingly in favor of the ban.
11.8.2006 11:32am
jvarisco (www):
It seems a bit simplistic to assume that all Democrats really want to legalize gay marriage, but are afraid of losing votes, while all Republicans oppose it. Many of the Democrats who won are quite conservative - Santorum may be gone, but Casey is no friend of gay marriage. Not to mention the resounding victory of all but one marriage amendment - and the explicit rejection, by a large margin, of civil unions in Colorado.

It's also the case that non-white men, who are extremely Democratic, are also extremely opposed to gay marriage. Perhaps the NAACP will catch up to its constituents sometime.
11.8.2006 11:45am
Randy R. (mail):
This is actually a big advance for gay marriage. Arizona actually rejected a ban on gay marriage, the first time that this has happened. Whenever people argued about gay marriage, the ones who are against it would always say that 'whenever it up to a vote, the people vote against gays getting married.'

Today, they are robbed of that argument. Additionally, the states where it DID pass, as in Virginia, it passed by a much smaller margin. Furthermore, if you read all the issues that concern voters in this election, not one person has stated that gay marriage was important. Moreoever, the study that was published in the Wall Street Journal showed that gay marriage had no effect on regular marriage in Scandinavia robs them of yet another argument.

Compare this with just two years ago, and you can see the huge advances that have been made. We are slowly moving toward gay marriage, and that's a good thing.

Looking towards the future, Gov. Spitzer has promised that the NY Legislature will pass same sex marriage laws, and he will sign it, making the state the first to adopt gay marriage not by judicial fiat, but by 'the people,' robbing opponents of yet one more argument.

NJ will soon have civil unions, if not marriage, and somehow people around the country will find it within themselves to still get married and have children. At that point, the only arguments against gay marriage will be the only real one -- they just don't like gays getting married.
11.8.2006 12:02pm
lucia (mail) (www):
jvarisco> "It seems a bit simplistic to assume that all Democrats really want to legalize gay marriage....[snip]"

I don't think that's what Kurtz was suggesting. I think Kurtz was suggesting is that if Democrats win:

1) state judges will be more likely to interpret constitutions in a way tha favors marriage equality and
2) congress will be less likely to pass a federal marriage amendment.

The first is idea is rather untestable. Most state supreme court justices have life tenure. Were previous state supreme court rulings strongly affected by who was in Congress? Or the State house? Or did the judges follow legal reasoning as they understand it?

I'd say the second idea is plausible. The next congress is unlikely to spend time introducing, debating and trying to drum up a super majority in both houses in order to pass a Federal Marriage Amendment which must then be ratified by 3/4 of states.
11.8.2006 12:25pm
Caliban Darklock (www):
@ Randy R:

> the only arguments against gay marriage will
> be the only real one -- they just don't like
> gays getting married.

Doesn't anyone other than me think this is a perfectly valid reason to vote against something? "I don't like that, so I won't vote for it."
11.8.2006 1:24pm
Randy R. (mail):
You need not justify your vote to anyone. You can vote for a person simply because you like their haircut. So ANY reason is a valid one for voting on anything.

However, in a public debate, you eventually find that you have to justify positions in order to convince other people to vote your way. Voting against gay marriage simply because you don't like it is perfectly valid, but it won't swing many people. As for the other arguments, they are increasingly becoming dead in the water.
11.8.2006 3:41pm
John Herbison (mail):
The Supreme Court of New Jersey showed considerable political savvy by rejecting a substantive due process right to same-sex marriage while grounding the result of the decision with regard to benefits, duties and obligations on the equal protection guaranty, independent of the red herring "marriage" language. This recognizes that how couples of heterosexual or homosexual orientation are actually treated under the law is separate from and independent of the labels used. The decision is a victory of substance for proponents of equal treatment, though arguably not a victory of form.

The legislature would be wise to follow the lead of the Court, so as not to needlessly inflame those political moderates who care more about the language employed than about the substantive provisions of the law.

The New Jersey approach may also afford an analytical route to avoid or ameliorate the harmful effect of recently enacted state constitutional provisions which proscribe same sex "marriage", depending on the specific wording of each particular provision.
11.8.2006 3:44pm
Chimaxx (mail):
Caliban: Of course not liking something is a perfectly valid reason for voting against it. No more justification required. That's the sole reason many men for many years voted against women suffrage.

On the other hand, when those opposed to women's suffrage gave reasons, they were remarkably like the reasons offered now for opposing same-sex marriage.

Such reasons, which provide rationalizations for people's innate and perfectly reasonable fears and hesitations about change, can work for a long time, but the more people talk about the issue, the more people see it happening elsewhere, the less scary it gets, until the fear-mongers' rationalizations start sounding kinda shrill and silly to most people.

We're already seeing the start of that. One of the amendments failed. Of the ones that passed, all passed by much narrower margins than similar amendments two years ago.
11.8.2006 3:57pm
Caliban Darklock (www):
@ Randy R:

> you eventually find that you have to justify
> positions in order to convince other people
> to vote your way.

And... you honestly can't connect the dots on this?

How many months have I been hanging around here saying "I do not see one single good reason why the government needs to recognise gay marriage"?

When exactly will I see one? I've seen good reasons why gays aren't treated equally, but none of them are really about marriage - they're about unfair institutional and corporate policies. Why aren't we simply complaining that these policies are wrong and should be changed? Why does "I can't make decisions for my partner when he's in the hospital" mean "gays need to get married"? Doesn't it mean "hospitals need to recognise more than just the spouse as qualified to make decisions"?

See, one of those things is good for LOTS of people, not just gays. It looks like you're trying to secure a right for gays, but not for anyone else. When we suggest that maybe we could change things for everyone, people in the gay lobby start stomping around yelling "No, no, no! It has to be for US! Not you people! You people get EVERYTHING! Marcia, Marcia, MARCIA!" and the rest of us think you're all freaks and weirdos.

@ Chimaxx:

> when those opposed to women's suffrage gave
> reasons, they were remarkably like the reasons
> offered now for opposing same-sex marriage.

Yes, because most people are stupid. They don't understand why they don't like it, but they understand it's wrong to say they don't like it without a reason. So they make shit up, and it's stupid. But that is not an argument *for* the other side. Simply because we don't know what will go wrong if gay marriage is legal doesn't mean NOTHING will go wrong, and an awful lot of people are scratching their heads over the question of what will go right.
11.8.2006 4:41pm
Chimaxx (mail):
Simply because we don't know what will go wrong if gay marriage is legal doesn't mean NOTHING will go wrong


Nor does it mean that anything actually will, in fact, go wrong.
11.8.2006 5:10pm
Caliban Darklock (www):
Chimaxx,

If the law does no good, passing it is very wrong indeed.
11.8.2006 5:49pm
lucia (mail) (www):
Caliban> Why does "I can't make decisions for my partner when he's in the hospital" mean "gays need to get married"? Doesn't it mean "hospitals need to recognise more than just the spouse as qualified to make decisions"?


Who in the heck wants hospitals to not respect the rights of spouses over those of others? Not me. If my husband is in the hospital, I want to be the decision maker. If I'm in the hospital, I want him to do that. Neither of us wants some other unnamed individual to override us.

With same sex marriage, gays would the similar right vis-a-vis their spouse and I don't lose mine.

I'm not sure what exactly you, Caliban, are proposing instead of marriage, but right now it sounds like you are proposing: a) Don't let gays gain this useful right through marriage and b) take it away from married heterosexual couples too.

All in the name of improving "something" for me and 'lots of people'?!

I know it might just be me, but could you explain precisely what "right" you wish to dump confer on "everyone", and then explain how this gives gays what they "really" want?
11.8.2006 6:44pm
Caliban Darklock (www):
@ lucia:

> it sounds like you are proposing: a) Don't
> let gays gain this useful right through
> marriage and b) take it away from married
> heterosexual couples too.

No, I'm proposing:

a) Give this right to gays WITHOUT marriage

and

b) Give it to other qualified people too

and by implication

c) Don't do jack shit to the rights of married people

I said "MORE than JUST the spouse". That means "the spouse AND OTHERS". Nothing gets taken away from anyone.

How hard is it to see that if Bob and Joe are roommates, just a couple of guys who aren't gay at all, and Joe ends up in a car accident that leaves him in a coma - Bob may very well be the best person to make decisions about his care? Gay marriage won't fix that. It's a short-sighted solution. There are other people who deserve the right to leave decisions with the people close to them, not just gays.
11.8.2006 7:29pm
Caliban Darklock (www):
I should probably crystallise my opinion on the gay marriage question, since people seem to have weird ideas about it. I believe that there are two kinds of special rights given to married people.

1. Rights that everyone should have, like the right to make medical decisions for people close to you

and

2. Rights that nobody should have, like the right not to testify against your spouse

So I believe that we should examine the rights of married people, and either extend them to everyone (via conditions independent of marriage) or remove them entirely. This makes the question of gay marriage completely irrelevant from a legislative standpoint. There will no longer be any special rights and privileges attached to it. We then need only stipulate that it is illegal to discriminate on the basis of marital status, which I believe we already have.

I don't oppose gay marriage per se so much as I oppose the recognition of a new special class of people entitled to rights and privileges beyond those of the average American.
11.8.2006 8:05pm
BobNSF (mail):
Caliban, you appear to not understand the concept of "next of kin". The important word is "next". Who is next in order of connectedness. A spouse is first, parents second, grand parents, siblings, cousins, etc. The reason for the hierarchy is obvious -- people do not always agree. Maybe, considering the Schiavo case, I should stick "congress" at the front of the list.

When you marry someone, you move them to the front of the list. To not allow gay people to do the same is to treat us very differently and you know it.
11.8.2006 10:15pm
Caliban Darklock (www):
> Caliban, you appear to not understand
> the concept of "next of kin".

I believe that YOU are in charge of who is or is not your "kin", and that anyone who disagrees with you can piss off. I believe that YOU should decide who does and does not have the right to make decisions for you in a medical situation, and that no hospital should be permitted to deny those wishes.

And I do not believe your marital status or sexual preference is at all relevant to that right. I believe it is a natural and normal right that should belong to each and every citizen of these United States, regardless of whom they do or do not choose to marry.

Since gays are the MOST frequently victimised people when families not only do not respect their wishes, but actively choose to violate those wishes... I would think this idea should appeal to you.

Unless, of course, you want this right DENIED to people who aren't gay or don't marry.

> When you marry someone, you move them to
> the front of the list.

And if you're not married, you don't get a list! You have to use the one some jackhole wrote up before you were born. Is *that* right?

Or is it only right if you're NOT gay, because gay people are SPECIAL?

> To not allow gay people to do the same is
> to treat us very differently and you know it.

On what planet is "everyone" not inclusive of gay people?

You can pretend this is an anti-gay idea all you want, but all you're really demonstrating is your own petty animosity toward heterosexuals. It's not enough for you to get what's fair, you have to be SPECIAL.

You don't want equality. You never did. But this isn't the Special Olympics, and everybody doesn't get a medal. Grow up.
11.8.2006 10:54pm
lucia (mail) (www):
Caliban> 1. Rights that everyone should have, like the right to make medical decisions for people close to you

But you are still entirely vague here. Other than thinking it would somehow benefit heterosexual married couples to unlink the automatic medical power of attorney from marriage, how precisely do you want to divy up this right among all the people who think they are close to you?

You may think the details don't matter, but frankly, I don't want everyone who thinks they are close to me to suddenly claim a right to make medical decisions for me and then fight it out in the hospital. The current system gives my husband the right by virtue of being my husband; he's the person who I want to make these decisions. I don't have to draw up separate legal documents. So, the current system is extremely convenient for me.

I happen to think this granting the right to a spouse by default is what most married people want.

How, exactly, would it benefit all married people to unlink this from marriage? How would you getting people to specify who decides for them?

(BTW: I can think of ideas, but the ones I can think of all seemed flawed. I don't want to use the bad methods I can dream up as strawmen for a counter argument!)
11.8.2006 11:15pm
Caliban Darklock (www):
@ lucia:

> How, exactly, would it benefit all
> married people to unlink this from
> marriage? How would you getting
> people to specify who decides for
> them?

The problem is not that we have a default order. The problem is that the default order is more and more frequently INAPPROPRIATE, and specifying a new one - via medical power of attorney - is too inconvenient.

So let's KEEP what we already have, and make changing it much more convenient. Nobody loses anything.

The easy answer is to have a list maintained with your medical records. At any time, you can contact your doctor and make changes to it. If you end up in the hospital and a decision needs to be made, they consult the list, and if they run off the end of it trying to find someone - they go to the default list we already have.

So if a couple wants to set this up, all they do is pick up their respective phones and call their respective doctors and they're done. They can do this when they're engaged. They can do it when they're cohabiting. They can do it when they're dating. Hell, can even put someone you don't know on your list... if you're insane.

I think every answer to this question is necessarily flawed in some few cases. The obvious flaw I see in this example is that you could use this to harass people by deliberately getting in an accident and having them on your list, but I don't think that's going to be a huge problem.

Another question: what if you're the sort of person who is frequently involved with multiple people to whom you are completely devoted for a couple of months? (This is most gay men I know.) You want your current partner to have the right to make decisions, but you don't want to call your doctor every time you meet someone. Obvious answer: a bracelet with a serial number on it, and put "bearer of bracelet with serial #xxxxx" on your list. Keep it in your apartment, and tell your partner where it is. If you end up in the hospital, he can just grab the bracelet and he's authorised. Not perfect, but workable.

And I know exactly what you mean about straw men. They're the mascot of the internet!
11.8.2006 11:38pm
lucia (mail) (www):
Caliban,

First, I'm glad I didn't set up the strawman and argue-- this was not what I was expecting! :)

I agree the current problem is changing or appointing a medical power of attorney is sufficiently complicated that just telling gays or cohabiting heterosexual couples they can do that is not a solution. Plus, hospitals aren't accustomed to asking for these things and end up ignoring these documents in favor of parents or siblings.

Unfortunately, right off the bat, I can think of a flaws your proposed solution.

I don't know statistics, but I understand quite a few people use medical emergency rooms for care and they visit different ones at different times. When I was a starving undergraduate and graduate student, I didn't have a regular doctor. This means those people won't have this "easy" method available to them.

Another flaw: doctors aren't going to want to take on a heavy responsibility like this for free. They make a mistake; they get sued? Heck, they don't make a mistake, they get sued? They will want to be able to refuse-- particularly for any patient who doesn't see them "regularly", which likely means at least twice a year. (In my entire adult life, there has been only 1 year when I visited any doctor more than once year. I'm 47.)

If most doctors refuse to maintain these records, suddenly, we're back to the situation where most people who want to override the default need to consult a lawyer and do the full medical power of attorney issue.

Yet another flaw: Let's say a doctor is willing to do this. Some things are to difficult; others are too easy. No sane doctor should assume a responsibility like this based on only a phone call. No one at my doctor's office recognizes my voice-- someone could call in and change it. Interfering parents exist both in soap operas and real life. I suspect interfering lovers and exes do too. Interfering kids calling to appoint themselves in place of a sibling? It would happen! If people are inclined to interfere, making something too easy would create potential problems for everyone!

So, any sane doctor would require a signed document. Ideally, it would be filled out in the presence of office personel when you sign all that medical privacy stuff and fill out all the checklists about allergies etc. A sane doctor would require the person collecting documents to verify your identity and co-sign the form. In their own self interest, the doctor might require the signature of the person you appointed as your medical caretaker. If the doctor didn't require this, their insurance company sure would! (In fact, because this would potentially drop legal and financial liability on primary care physicians collecting and maintaining records, you might find their requirements would become very, very stringent! )

Still, hypothetically, one might find a workable solution that is neither too easy nor to hard and solves the problem for cohabiting couples who consider themselves to be in a "marital like" arrangement without creating potential problems for everyone else, and without also dumping a potentially huge legal liability on physicians.

Until one does find the solution and implements it, we are back to where we are now which is: cohabiting "married like" couples must consult legal counsel, fill out medical power of attorneys and then hope they can get hospitals to honor them. If these couples were permitted to marry, the default would cover this particular problem (and many more that arise because they live as married but can't attain that legal status.)
11.9.2006 9:26am
Caliban Darklock (www):
> When I was a starving undergraduate and
> graduate student, I didn't have a regular
> doctor.

This is a separate problem. HIPPAA is a step toward resolving this by making your medical records readily available to any doctor you see, but whether you have medical records at all is a larger can of worms. I'm not prepared to solve the national health care problem just yet. ;)

> Another flaw: doctors aren't going to want
> to take on a heavy responsibility like this
> for free.

If it's the law, it doesn't matter what they want. I have a right to see my medical files, and even if my doctor thinks it's a bad idea, if I walk in and ask for them - he has to give them to me. He can't charge me for it, either.

> No sane doctor should assume a responsibility
> like this based on only a phone call.

My wife can get a prescription for narcotics over the phone. If they're comfortable with that, why wouldn't they be comfortable with this?

> So, any sane doctor would require a signed
> document.

Then let them do so. Most people have access to a fax machine, even if only through the local Kinko's. They can get the document faxed over, amend the list, and fax it back. I don't really care what procedures a doctor wants to put in place for his own protection; he should be required to maintain the list as I direct, and to deliver that list to any medical facility that properly requests it.

> If these couples were permitted to marry,
> the default would cover this particular problem

Not if they DON'T WANT to marry. That keeps being neglected here: there are people who deserve this right and do not want to be married. It doesn't matter whether they can legally be married if they don't want to be married.

And I think they outnumber gay couples who want to be married. So if it's unacceptable to deny this right to gay couples, surely it's unacceptable to deny it to the willfully unmarried.
11.9.2006 2:09pm
lucia (mail) (www):
blockquote>
I'm not prepared to solve the national health care problem just yet. ;)
I'm not proposing you solve the nearly unsolvable. I'm just pointing out that the "solution" you proposed won't work unless we first solve an entirely unrelated nearly unsolvable problem!

That means your solution is a "non-solution" for many.

If it's the law, it doesn't matter what they want.

No, if it's the law, it wouldn't matter what the physicians want. But the fact this would hurt physicians means there is an interest group entirely unconnected to gays or unmarried heterosexual couples who would likely stand in the way of the law you propose being passed.

Why should doctors assume this legal liability when the problem, at least for people who wish to marry, could be solved by simply permitting them to marry?

My wife can get a prescription for narcotics over the phone. If they're comfortable with that, why wouldn't they be comfortable with this?
Because the liability involved in maintaining records describing a medical power of attorney would be much larger than the liability involved in refilling a prescription over the phone.

In any case, the problem isn't that I might call the doctor. The problem is someone else might do it pretending to be me and the doctor would be duped into changing my records. If, as you propose, this could be done by phone call, this type of deception would occur.

he should be required to maintain the list as I direct, and to deliver that list to any medical facility that properly requests it.

If the law were drafted this way, he would be.

The underlying question is: why is it a good idea to draft a law creating an unfunded mandate forcing doctors to keep these extra records? Why shouldn't doctors object? Anyway, are doctors in general particularly good at keeping this sort of paperwork? (Seriously.)

Is the only purpose for heaping this on doctors to come up with a reason to prevent same sex marriage? Or is it a good idea otherwise?

Most people have access to a fax machine,

Over a fax machine? There would be liability involved. What doctor isn't going to want the faxed document notarized too? And then require the hard copy of the notarized item to be delivered? (That's what we do for real estate transactions dealt with over fax.)

Yes, all these things are "doable". The problem is: You, Caliban, are supposedly trying to come up with something easier than the already existing method. That currently existing method involves creating a medical power of attorney for this particular problem -- which we both agree is too cumbersome ( particularly if we have to repeat this for every legal issue that arises when couples live as married.)

However, the "solution" you suggest will create a liability issue for an outside party: the primary care physician. To protect themselves from liability, physicians will need to re-erect all the hurdles that already exist and likely more!

Then we are back to something more difficult to change than a medical power of attorney.

Yes, this cumbersome system could be put in place, but what's the advantage over the current cumbersome system?

That keeps being neglected here: there are people who deserve this right and do not want to be married.

Who's neglecting this group or trying to deny them right they want to have? I don't think the solution you propose helps couples who don't want to marry.

It is just as cumbersome as the current method. It opens physicians to liability and appears to be susceptible to manipulation by outsiders who might try to gain a medical power of attorney through deceit.

And, the way described, this new cumbersome system can make things worse for heterosexual married couples who benefit greatly with the current system!

Meanwhile, the fact that we could implement your system-- which sounds bad all around for everyone (at least to me) -- is supposedly a reason we should prohibit a same sex marriage?

As to the group of heterosexuals who don't want to marry but want some of the benefits of marriage: Registered partnerships with different set of benefits, rights, duties and responsibilities might actually help these couples -- provided they want to enter into those registered partnerships. Some people like the idea of these; others don't. Those who want them are free to work towards them and have then drafted to solve the needs of couples who want something sort of, but not quite like, marriage.

I don't see why the fact that registered partnerships could be set up is any reason to prohibit gays who want to marry from marrying. It's a separate issue whose merits can be discussed on their own!
11.9.2006 3:52pm
Caliban Darklock (www):
> I'm just pointing out that the "solution"
> you proposed won't work unless we first
> solve an entirely unrelated nearly unsolvable
> problem!

No, it won't work perfectly. But because we have an entirely unrelated nearly unsolvable problem, NOTHING will work perfectly, and my solution works BETTER than what we have for MORE people than the current proposal of gay marriage. It will *continue* to work better for more people as we make progress toward solving this unrelated problem.

> But the fact this would hurt physicians

That's not a fact, it's a baseless speculation.

> the liability involved [...] would be much larger

If a doctor makes a sufficient good faith effort to establish identity, why would he have liability? The liability rests with the person committing the fraud.

> why is it a good idea to draft a law creating
> an unfunded mandate forcing doctors to keep
> these extra records?

Because they should have been keeping them all along. It's an important part of your medical records: who makes decisions for you when you can't make them? What if that person isn't available? Since it's the doctor who needs to have this information, it's the doctor who should be keeping it.

> Over a fax machine? There would be
> liability involved.

There's ALWAYS liability involved. Convenience comes at the expense of security. We have security with medical power of attorney, but we don't have convenience. If we need convenience, it comes only by decreasing security.

> Who's neglecting this group or trying
> to deny them right they want to have?

They don't have this right, and nobody is proposing that we give them this right. That's neglect. And when we're actively promoting legislation to give this right to a different group, we're affirming that we want this right denied to them.

> I don't think the solution you propose
> helps couples who don't want to marry.

A couple that does not want to marry currently cannot delegate the ability to make medical decisions to one another without complex legal paperwork. If we give them the right to make this delegation without complex paperwork, how does that not help them?

I don't own or want a handgun. Does the *right* to own one help me? I believe it does. I believe freedom has benefit even when you do not exercise it. So even if there isn't one single person who ever uses this ability, I believe the ability alone helps everyone who has it.

> It [...] appears to be susceptible to
> manipulation

What currently stops people from preparing falsified legal documents anyway? You could just buy an "advance health care directive" form on the internet for $10 and forge a signature. And what about impersonation? What stops some random guy from bringing you into the hospital and claiming to be your father, or brother, or husband? He can do an awful lot of damage before they find him out, and might actually be gone by the time they start trying.

Are you seriously going to propose that we need to make more security checks BEFORE rendering urgent medical care? What happens when your husband is still busily proving his identity when you flatline on the table because they couldn't get consent in time? Who's liable THEN? You? Your husband? The hospital? The doctor? What difference does it make! You're DEAD.

> a reason we should prohibit a same
> sex marriage?

I don't want same sex marriage prohibited. I want it to be irrelevant. Like I've already said, there are two kinds of rights and privileges married couples get: things that everyone should have, and things that nobody should have. Once we figure out which category everything falls into, and either give it to everyone or remove it completely, the question of legally recognised marriage is simply pointless.

Which leaves one and only one reason to get married: because you want to be married. Not for a tax break, or so your partner can stay in the country, or because you can pass on survivor benefits. None of those would be attached to marriage anymore, and marriage wouldn't get you any special treatment. Isn't that the way it's supposed to be? Whether you're married or not shouldn't matter to the government. It should only matter to YOU.
11.9.2006 5:23pm
Chimaxx (mail):
Are you seriously going to propose that we need to make more security checks BEFORE rendering urgent medical care? What happens when your husband is still busily proving his identity when you flatline on the table because they couldn't get consent in time? Who's liable THEN? You? Your husband? The hospital? The doctor? What difference does it make! You're DEAD.


And under your system, what happens when you land in the hospital emergency room while your primary care physician--the one who is maintaining all those records about who gets to make medical decisions about you--is on her way to the Bahamas or to a medical conference in India. In the absence of any documentation, in the absence of any default pecking order (spouse, adult children, parents, siblings, etc.), who gets to make decisions for you before you flatline?

Fight for your "getting the government out of marriage" proposal, atomizing decision-making over medical decisions, who you can sponsor for immigration to the US, legal and financial liability.

If you think this is an important cause, go ahead and fight for it. But, in the interim, until you get this major social change implemented (and just in case you aren't able to pull it off), while civil marriage does still exist, why not allow same-sex couples who want to legally marry to do so? Stanley Kurtz would argue that allowing same-sex marriage would make your larger proposed reform all but inevitable. I don't agree with Kurtz, but I fail to see how allowing same-sex marriage now could hurt your cause to remove the legal and financial incentives to marriage.
11.9.2006 6:45pm
Caliban Darklock (www):
> In the absence of any documentation,

Shouldn't happen. Records should be rapidly accessible. If they're not, that's a separate problem which goes beyond this issue. What if you're diabetic, allergic to penicillin, or have a religious objection to certain kinds of medical care? That ought to be in your records. They should be able to get your records.

However, they still need to identify you, which may be the root of the problem. So read on.

> in the absence of any default pecking
> order (spouse, adult children, parents,
> siblings, etc.), who gets to make
> decisions for you before you flatline?

Any answer to that question constitutes a default pecking order. However, in the absence of other sensible candidates, that order should be:

- The people who brought you into the hospital, if they choose to accept that responsibility

- The doctor, if they don't

Which is pretty much what happens now. If you take someone else into the emergency room, the doctors ask you questions, and if you can't or won't answer them the doctors make the decision without you.

> until you get this major social change
> implemented [...] why not allow same-sex
> couples who want to legally marry to do so?

If unmarried same sex couples deserve these rights, why don't unmarried opposite sex couples deserve them?

Give me ONE GOOD REASON why a gay couple deserves this right, but an unmarried heterosexual couple doesn't.

And incidentally: I'm married, too. This is not my own personal self-interest talking, it is a fundamental awareness and understanding of what is right and what is wrong.

> I fail to see how allowing same-sex
> marriage now could hurt your cause

It doesn't. It hurts GAYS. Gay couples do not need to get married, they need to be treated with respect by society. Getting married will not make that happen. It will only make things worse.

Instead of just being lectured on the sin of homosexuality, they will *also* be lectured on perverting the institution of marriage - and since we'll have given them what they want, a large number of people will see their ensuing dissatisfaction as being ungrateful. It doesn't bring them the social acceptance they want - it only creates more problems and more disapproval.

This issue needs to stop being about gays and start being about Americans. Nobody in America is against Americans, but too many people are either against gays or just not exactly for them.
11.9.2006 7:42pm
Chimaxx (mail):
Caliban:

Why not allow individual gay couples to decide whether or not they need or want to get married.

And for a while, some gay citizens probably will be lectured on how their marriage or their friend's marriage has undermined the institution of marriage (though we don't hear about that happening in any of the places where same-sex marriage has been legalized, and it would invitably fade in time, as these things do: Almost no one any more lectures women that they trivilaize the voting franchise by exercizing their right to vote, though I still heard that argument being made 40 years ago to women in the neighborhood I grew up in, while other women used it as an excuse not to vote).

Your paternalistic desire to save your gay fellow citizens from the occasional stern-talking-to by witholding from them the right to marriage is patronizing, at best.

This issue needs to stop being about gays and start being about Americans. Nobody in America is against Americans, but too many people are either against gays or just not exactly for them.


I've read this three times, and I still can't figure out what the heck you mean. I mean we're talking about gay Americans, right? So which Americans are or aren't against other Americans?
11.9.2006 8:58pm
Chimaxx (mail):
Oh, and as to the medical issue, now your detailed record-keeping system of who has the right to make medical decisions for you when you aren't able not only has to be maintained by your doctor, but has to be instantly accessible in every hospital everywhere across the country, if not the world. And presumably, it has to be kept private, as well, because you wouldn't necessarily want people you are close to who aren't at the top of the list to know that. It's getting much more complex instead of simpler.


If you take someone else into the emergency room, the doctors ask you questions, and if you can't or won't answer them the doctors make the decision without you.


Unless one of your next of kin (or someone carrying a copy of your medical power of attorney) shows up partway into it and starts directing the doctors.

And you write:

If unmarried same sex couples deserve these rights, why don't unmarried opposite sex couples deserve them?

Give me ONE GOOD REASON why a gay couple deserves this right, but an unmarried heterosexual couple doesn't.


Currently? Because they're not permitted to legally marry.
11.9.2006 9:09pm
Caliban Darklock (www):
> now your detailed record-keeping
> system [...] has to be instantly
> accessible in every hospital
> everywhere across the country, if
> not the world

Yes... just like your medical power of attorney. If the hospital can't access it, there's no such thing. This is a problem, but not with the proposed system... it's a problem with our nation's health care system.

> Unless...

...we violate your own conditions:

"In the absence of any documentation, in the absence of any default pecking order"

Absence means it ain't there. You can't throw it into the mix now because it's convenient. Follow your own rules.

> Because they're not permitted to legally marry.

How does that justify *denying* this right to unmarried heterosexual couples? They don't deserve this right because they have another right they don't want? How does that work?
11.9.2006 9:49pm
Chimaxx (mail):
...we violate your own conditions:

"In the absence of any documentation, in the absence of any default pecking order"


You're the one who wants to remove the default pecking order.

Now, if no one has a copy of the documentation, the hospital relies on the default pecking order unless and until it the documentation shows up--not perfect, but better than no one close to the patient being able to make decisions.

If a heterosexual couple chooses not to marry, they give up the implicit right to be considered next of kin for various purposes, including medical decision-making. They can draw up legal paper work to put together some of those rights, but, like any same-sex couple, that paerwork is vulnerable to challenges to the family (as is marriage alone without the documentation, as the Schivo case showed). If they want legal next-of-kin status, they can marry.

Am I the only one who thinks there's a difference between choosing not to access a bundle of rights and responsibilities, and being prevented from doing so; between having a shopping cart mentality toward that bundle because you want some and not others, and doing your best to paste something together because you're denied access to the whole bundle?
11.9.2006 10:13pm
lucia (mail) (www):
Caliban said: This is not my own personal self-interest talking, it is a fundamental awareness and understanding of what is right and what is wrong.

Ahh.. but if you were speaking out of self interest, I'd have more respect for the idea!

I'm convinced the system you are describing is currently unworkable, creates potential problems for everyone, solves no problems for unmarried heterosexuals couples, solves no problems for homosexuals and would heap unnecessary liability on doctors.

I'm not saying it's imperfect -- I'm saying it is so flawed it scares me!

I predict no one will ask for your system, because it is akin to asking to be served dung for dinner. Maybe someone has a right to that, but if they do, they would be even happier to know they have a right to not be served dung for dinner!
11.9.2006 10:50pm
Caliban Darklock (www):
@ Chimaxx:

> Why not allow individual gay couples
> to decide whether or not they need or
> want to get married.

Why not allow them to decide it by themselves, without hanging a bunch of special rights and privileges over on the "married" side to influence their decisions?

There are a lot of straight guys out there who have been argued into a shitty marriage because of incentives that they only get if they're married. Why should there be a bunch of gay guys argued into shitty marriages they don't want?

> Your paternalistic desire to save
> your gay fellow citizens [...] is
> patronizing, at best.

You misunderstand. If I say nothing, I am partly to blame. But now I've told you what is going to happen, so my conscience is clear.

And that is where I get my license to laugh at you, when you figure out I was right all along. I don't want to save you. That wouldn't be funny at all.

> I've read this three times, and I
> still can't figure out what the heck
> you mean.

As long as you are trying to get something exclusively for the gay community, you are fighting a losing battle, because the majority of America is saying "WHAT'S IN IT FOR ME?" and the answer is "nothing". Put something in it for them, and you'll get people on your side.

But as long as this is only about gays, America doesn't want it, and doesn't like it, and you won't get it. Your polls will look good, because nobody will say it out loud, but they'll still hate you for being gay, and now they'll hate you for screwing up marriage, too.
11.9.2006 10:53pm
lucia (mail) (www):
Caliban> and now they'll hate you for screwing up marriage, too.

Please explain how letting gays marry screws up marriage? Because I've been married 22 years now and I don't see how it would screw up mine.

Caliban> There are a lot of straight guys out there who have been argued into a shitty marriage because of incentives that they only get if they're married.

Are we to assume you have a shitty marriage?
11.9.2006 11:06pm
Caliban Darklock (www):
@ Chimaxx:

> You're the one who wants to remove
> the default pecking order.

Wrong: "So let's KEEP what we already have, and make changing it much more convenient. Nobody loses anything."

> there's a difference between choosing
> not to access a bundle of rights and
> responsibilities, and being prevented
> from doing so

Not always. If one of the responsibilities is unconscionable, you're just as effectively prevented from choosing the bundle as if you had no right to choose at all.

@ lucia:

> I'm convinced the system you are
> describing is currently unworkable

The only unworkable part of the system I've described is that the current system already sucks, and will continue to suck all around the new system. I am not solving every problem in the health care industry, because this is a basic system invented on the fly in less than 24 hours as an EXAMPLE.

The point is, there's a way. Did I find it the first day? Probably not. But there is one. Your lack of faith does not change the facts.
11.9.2006 11:38pm
Caliban Darklock (www):
@ lucia:

> Please explain how letting gays
> marry screws up marriage?

Can't. Go ask one of the stupid irrational dickheads who actually believes that.

> Are we to assume you have a
> shitty marriage?

No, you're to assume that there are guys out there who do, because that's what I said. If you don't believe me, you can go confirm it for yourself.
11.9.2006 11:49pm
lucia (mail) (www):
Caliban,

So, though your marriage is not shitty, you think gays shouldn't want it because some people have shitty ones?

And we are supposed to not extend marriage to same sex partners who want it because it won't screw up marriage, but there are irrational dickheads who think it will?

I've never been convinced the letting irrational dickheads dictate or laws is a good way to go.
11.10.2006 8:00am
lucia (mail) (www):

Caliban> The point is, there's a way. Did I find it the first day? Probably not. But there is one. Your lack of faith does not change the facts.

Facts? Who says there is a way to let single people change their medical power of attorney that is any easier than the current way? God? You? The Flying Spaghetti Monster?

Until someone finds or describes the method, why should anyone believe its existance is a fact?

For my part, if you want to spend more time finding a way, or proving the method even exists, that's fine. Should you find way that sounds workable, and which has the endorsement of a actual members of the group who you imagine wants it (heterosexual singles) I'll support it.

Until that time, why should anyone prohibit same sex marriage because your hypothetical as yet unidentified method solves a problem for another group of people? Particularly since there is no reason to believe letting gays marry would interfere with the hypotehtical solution?
11.10.2006 10:04am
Caliban Darklock (www):
@ lucia:

> So, though your marriage is not
> shitty, you think gays shouldn't
> want it because some people have
> shitty ones?

No, I think some people don't want marriage. They just want the little bundle of rights that married people get. These people then have to choose between:

- Not having the rights they want
- Having a marriage they don't want

These are both bad choices. No matter which one they choose, they will be worse off. So I'm asking a very serious question: why do you HAVE to be married to have these rights?

And the answer seems to be "you don't". If that's true, we can give those rights to everyone. Then people who don't want to get married will not have to get married. They can make that choice entirely without coercion. What's wrong with that?

Sure, you can grab one specific right out of there and demand that I immediately tell you exactly how we're going to give it to everyone, and I won't really know. But that's not my problem. It isn't my job to figure out how these rights get extended to everyone. Is it a tough question? Sure. But there's an answer.

> And we are supposed to not
> extend marriage to same sex
> partners who want it

No, we're supposed to not care whether the state recognises the marriage, because there's no difference either way. Then the religious right jackasses can sit there and say "WE have a LEGAL marriage", while the gays can still go and get married anyway because nobody really cares.

The only people drawing the line will be bigots. If someone says "that is NOT your husband, because your marriage is not LEGAL", he's an asshole. Who cares what he thinks?

> Who says there is a way

Process improvement is my business. Give me six months and a half million dollars, I'll give you a working prototype.

> Should you find way [...]
> I'll support it.

Put that in writing, and I can have a preliminary project charter on your fax machine in 72 hours. That goes for anyone reading this.

> why should anyone prohibit
> same sex marriage

I don't want it prohibited. How many times do I have to say that?
11.10.2006 5:42pm
lucia (mail) (www):
I don't want it prohibited. How many times do I have to say that?


If you don't want to be asked why you object to prohibiting same sex marriage, you need to stop posting objecting to passing the laws recognizing them. (See above.)
11.10.2006 6:33pm
Caliban Darklock (www):
> If you don't want to be asked why
> you object to prohibiting same sex
> marriage, you need to stop posting
> objecting to passing the laws
> recognizing them. (See above.)

But I object to both. Why can't you understand that? BOTH of the proposed laws about gay marriage are stupid and shortsighted and wrong, because it's not about gays. It's about the changing nature of what we call "family" in America.

That includes gays, married or not, children or not. But it also includes straight couples, bi couples, open marriages, classical polygamy (polygyny), "reverse" polygamy (polyandry), polyamorous groups, and more besides. And when you try to pretend it's just gays, you're cutting out all of those other people. I don't like that. I think it's selfish, presumptuous, and rude.

And ask yourself this: it's hard for an unmarried heterosexual couple to adopt, because they're not a stable family unit. An unmarried gay couple, however, can adopt because they're not allowed to get married. What happens when they are?

Why, the same thing that's already happening with health insurance companies: as it starts to look like gay marriage is going to become legal in the near future, family benefits for unmarried gay couples are being quietly written out of new policies. Likewise, the benefits of unmarried gay couples will begin to evaporate from other areas of American life.

So it looks to me like recognising gay marriage will create a negative impact for unmarried gays. And since it's estimated only thirty percent of gays want to get married, the MAJORITY of gays will suffer under this policy unless they get married.

I think that sucks. I want to have a different policy, where nobody suffers. What's wrong with that?
11.10.2006 9:12pm
Chairm:
Caliban Darklock, interesting ideas.

I'm just observing the discussion and don't wish to jump-in.

However, I'm interested in a reference, or a link to the source, for your point that "it's estimated only thirty percent of gays want to get married".

Thanks.
11.10.2006 11:34pm
Caliban Darklock (www):
@ Chairm:

> I'm interested in a reference, or a
> link to the source, for your point
> that "it's estimated only thirty
> percent of gays want to get married".

I typed "percentage of gays who want to get married" into MSN, and I found this. It has a much lower figure:

"depending on estimates of the size of the gay population from 1.1 to 5 percent [...] 5.9 to 16.7 percent of Massachusetts' gay population [...] had married"

These statistics have an inverse relation. So if 5% of the population is gay, 6% of gays actually got married in Massachusetts. But these numbers not only aren't what we want, they are clearly biased. Most of the gays I meet fall into three categories:

1. I want to get married NOW!
2. I might get married one day.
3. Married? Me? HAHAHAHAHAHAHA

Since the data only consider gays who HAVE married, not those who WANT to be married, and I'm pretty sure 6% is too low an estimate for group 1 - I'll arbitrarily say half of group 1 would be married today if it were legal. That gives us 12% in group 1; a little less than 1 in 8. That feels about right.

The second group outnumbers the first, but not by a lot; certainly not two to one. It is itself handily outnumbered by the second, however - at roughly four to one. Hard problem? Nope - elementary algebra. 12 + x + 4x = 100, so we readily determine that x = 17.6, and since group 2 wants gay marriage - even though they don't want to be married NOW - we'll add groups one and two to get 29.6% which rounds up to thirty.

This would be a lot easier if people would just tell the truth instead of cherry-picking the data that make their side look better, but who are we kidding?
11.11.2006 12:28pm